Wednesday, July 3, 2013

The Supreme Court’s recent
decision
in Adoptive Couple v. Baby Girl created confusion concerning tribal sovereignty. The 1978
Indian Child Welfare Act (ICWA), the statute at issue, is intended to keep Native
American children from being taken from their homes and typically placed with
non-Native American adoptive or foster parents, in an effort to preserve
familial bonds between birth parents and their children. But in a 5-4 ruling,
the Court said federal law doesn’t require that a Native American child be
taken away from her adoptive parents and given to her biological father. It is
now uncertain how this opinion will fare for Native American rights: will this
strengthen tribal sovereignty or harm it in the long run? On June 25, 2013,
Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and
Stephen Breyer joined Justice Samuel Alito, who wrote the majority opinion.
Justice Sonia Sotomayor wrote the dissenting opinion. She was joined by
Justices Antonin Scalia, Ruth Bader Ginsburg and Elana Kagan.

The prospective adoptive
parents filed a petition to adopt “Baby Veronica” (AKA “Baby Girl”). Her biological
father, a member of a Native American tribe, opposed adoption, and the Cherokee
Nation intervened. The Charleston County Family Court denied the adoptive
parents’ petition and required the prospective adoptive parents to transfer the
child to her father. The prospective adoptive parents appealed. The South
Carolina Supreme Court affirmed the lower court’s decision. The Supreme Court granted
certiorari.

The tone and outcome of
this case is immediately apparent from Justice Alito’s opening paragraph:

“This case is about a little girl (Baby Girl)
who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because
Baby Girl is classified in this way, the South Carolina Supreme Court held that
certain provisions of the federal Indian Child Welfare Act of 1978 required her
to be taken, at the age of 27 months, from the only parents she had ever known
and handed over to her biological father, who had attempted to relinquish his
parental rights and who had no prior contact with the child. The provisions of
the federal statute at issue here do not demand this result.”Adoptive Couple v. Baby Girl, 12-399,
2013 WL 3184627 (U.S.S.C. 2013).

This case turned on the
fact that the child was never in the father’s custody. The Court held that this
case differs from a normal interpretation of 25 U.S.C. § 1912(f) since it involves
a parent that never had custody of the child. The Court further held that §
1912(d), which conditions involuntary termination of parental rights with
respect to a Native American child on a showing that remedial efforts have been
made to prevent the “breakup of the Indian family,” is inapplicable when, as
here, the parent abandoned the child before birth and never had
custody of the child. The Court further clarified that § 1915(a), which
provides placement preferences for the adoption of Native American children,
does not bar a non-Native American family like Adoptive Couple from adopting a
Native American child when no other eligible candidates have sought to adopt
the child. The Court reversed the South Carolina Supreme Court's judgment and
remanded for further proceedings.

After a tumultuous
romance, the birth parents of the child in this case ceased dating and called
off their engagement. Via text message, the birth mother asked the biological
father if he would like to pay child support or terminate his parental rights. The
biological father chose the latter option. Birth mother then decided to put Baby Girl up for adoption.
Because birth mother believed that biological father had Cherokee Indian
heritage, her attorney contacted the Cherokee Nation to determine whether the biological
father was formally enrolled. The inquiry letter misspelled biological father's
first name and incorrectly stated his birthday. Cherokee Nation responded that,
based on the information provided, it could not verify Biological Father's
membership in the tribal records.

Working
through a private adoption agency, the birth mother selected the adoptive
couple, non-Native
Americansliving in
South Carolina, to adopt Baby Girl. Adoptive couple supported birth mother
throughout her pregnancy and they were present at the birth. Justice Alito
seemed most impressed that the adoptive father cut the umbilical cord. The next
morning, birth mother signed forms relinquishing her parental rights and
consenting to the adoption. Adoptive couple initiated adoption proceedings in
South Carolina a few days later, and returned there with Baby Girl. After
returning to South Carolina, the adoptive couple allowed the birth mother to
maintain a relationship with the baby.

In
this case, it was undisputed that had Baby Girl not been 3/256 Cherokee, the biological father would have had no right to object to her adoption under South
Carolina law. The South Carolina Supreme Court held that the biological father is a
“parent” under the ICWA and that two statutory provisions—namely,§ 1912(f)and§ 1912(d)—bar the
termination of his parental rights. The Court did not decide whether biological
father is a “parent” for purposes of these statutes, persuaded by adoptive
parents’ arguments.The Court
held that even if he was within the definition of the statute, the Court still
held that neither§ 1912(f)nor§ 1912(d)bars the termination of his parental
rights.

The
Court found the argument that the biological father’s custody would not cause
harm to the child flawed, because according to the Court, this is not an issue
of a prospective custody. The Court says that the analysis that the State
Supreme Court followed hinged on the following: “Specifically, § 1912(f) provides that “[n]o termination of
parental rights may be ordered in such proceeding in the absence of a
determination, supported by evidence beyond a reasonable doubt, ... that the continued
custody of the child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child.” Since the statute
specifically refers to continued custody,§ 1912(f), then,does not apply in cases where theNative Americanparent neverhad custody of the child.

According
to the Court, the primary mischief the ICWA was designed to counteract was the
unwarrantedremovalof Native American childrenfromNative Americanfamilies due to the cultural
insensitivity and biases of social workers and state courts. “The statutory
text expressly highlights the primary problem that the statute was intended to solve:
“an alarmingly high percentage ofIndianfamilies [were being] broken up by theremoval,often
unwarranted, of theirchildrenfrom them by nontribal public and
private agencies.”§ 1901(4).” The Court distinguished this intent from the case at
bar: when, as here, the adoption of a Native American childis voluntarily and lawfully initiated
by a non-Native
Americanparent
with sole custodial rights. The ICWA's
primary goal of preventing the unwarranted removal ofNative Americanchildrenand the dissolution ofNative American families is not
implicated. Thus, since the biological father never had custody of his
daughter, the South Carolina Supreme Court erred in finding that§ 1912(f)barred termination of Biological
Father's parental rights.

The
Court provides guidance as to the statutory term “breakup,” relating to the
statute’s intent to prevent the “breakup” of familial relations by the mischief
that ICWA was enacted to redress. Justice Alito held that just as the continued
custody requirement was not met here to require biological father’s
sought-after remedy, the term “breakup” should be read within the same context
of “continued custody.” Since the biological father “abandoned” his child, he
cannot claim that the adoption caused the breakup of his familial relations. So
the Court held that the South Carolina Supreme Court erred in finding that§ 1912(d)barred termination of Biological
Father's parental rights.

Justice
Alito also held that§ 1915(a)'s
preferences are inapplicable in cases where no alternative party has formally
sought to adopt thechild.
This ICWA section states: “[i]n any adoptive placement of anIndianchildunder State law, a preference shall be
given, in the absence of good cause to the contrary, to a placement with (1) a
member of thechild'sextended family; (2) other members of
the Indianchild'stribe; or (3) otherIndianfamilies.” The Court held that this
section does not apply because there cannot be a preference to apply if no
alternative party that is eligible to be preferred under§ 1915(a)has come
forward. Since the adoptive couple was the only party seeking custody of the
baby, and since her biological parents did not seek custody of their daughter,
and since the Cherokee nation did not seek the adoption of the girl even after
intervening in the adoption proceedings, the Court held that this argument also
fails.

In
Justice Alito’s concluding paragraph, he warns that the State Supreme Court
decision would put certain vulnerablechildrenat a great disadvantage solely because
any ancestor, even a remote one, was Native American. Further, “…As the State
Supreme Court read§§ 1912(d)and(f), a
biologicalIndianfather could abandon hischildin uteroand
refuse any support for the birth mother—perhaps contributing to the mother's
decision to put thechildup for adoption—and then could play
his ICWA trump card at the eleventh hour to override the mother's decision and
thechild'sbest interests.” Justice Alito also warns that if the State
Supreme Court’s decision were to stand, adoptive parents would be cautious to
adopt and sue to determine rights before becoming entangled in equal protection
concerns and ancestors claiming custody over adoptive parents. Thus, it seems
that this case has made it clear that a biological parent who wants custody of
his/her child who is adopted by a non-Native American non-relative, should: be
an active parent during pregnancy, pay some support during the child’s life, be
active within the tribal nation, and should offer evidence that his/her
continued custody would be broken up by adoption by a non-Native American
non-relative couple or person. However, it is unclear how this decision will
affect tribal sovereignty and if this holding will affect “all Indian parents who have never had custody of their children, no
matter how fully those parents have embraced the financial and emotional
responsibilities of parenting,” as Justice Sotomayor’s dissent warns.

Justice Sotomayor’s
dissent outlines the implications of this holding due to the fact that the
father has a federally acknowledged and protected parent-child relationship
that this Act was designed to protect, and that Justice Alito’s analysis of §
1912 is too simple. According to the dissent, § 1912 does not require that a
“parent” carryout the functions of a parent to keep that title. The dissent
states that Justice Alito and the majority give on one hand and take from
another by stating that themajority illogically
concluded that ICWA'ssubstantive protections
are available only to a subset of “parent[s]”: those who have previously had
physical or state-recognized legal custody of his or herchild. Further, the dissent states that such a
narrow definition of “breakup” is inappropriate; noting that nothing in
the text of subsection (d) indicates that a blood relationship should be
excluded from the category of familial “relationships” that the provision aims
to save from “discontinuance.”

However, the crux of the dissent rests in this paragraph:

“The majority
is willing to assume, for the sake of argument, that Birth Father is a “parent”
within the meaning of ICWA. But the majority fails to account for all that
follows from that assumption. The majority repeatedly passes over the term
“termination of parental rights” that, as defined by§ 1903, clearly
encompasses an action aimed at severing Birth Father's “parent-childrelationship” with Baby Girl. The
majority chooses instead to focus on phrases not statutorily defined that it
then uses to exclude Birth Father from the benefits of his parental status.
When one must disregard a statute's use of terms that have been explicitly
defined by Congress, that should be a signal that one is distorting, rather
than faithfully reading, the law in question.”

This
case truly demonstrates the different schools of judicial interpretation
currently serving on the Supreme Court bench. It seems that the textualists,
originalists, and strict constructionists have carved an exception to the ICWA
framework in this case. The applicability of this rule will challenge agencies
to reconsider Native American child adoptions and the procedure so as to avoid
challenges and trial. Only time will tell.